More Than a Reasonable Doubt

By Colman McCarthy

Amenities in the Virginia State Prison include a cooling room. On the basement level, it is a few yards from the death chamber that holds Virginia’s best-functioning piece of judicial furniture, its electric chair. After people are killed—247 since 1908— their bodies are scorchingly hot from taking 2,500 volts of electricity in as many surges as needed. In the cooling room, corpses have their temperatures lowered for handling and shipping.
Into this scene of modern barbarity, a shackled and cuffed Joseph Giarratano was led the other morning for an interview. It was a makeshift arrangement. The prison, a hellhole built before the Civil War and recently closed except for the death chamber, no longer has a functioning visitors’ room. The cooling room is all.

Giarratano is the 34-year-old former drug addict scheduled to be electrocuted February 22 for the 1979 apartment-house knifing of Toni Kline of Norfolk , Virginia, and the rape and strangling of her 15-year-old daughter, Michelle.

Few modern death-penalty cases have received as much national and international attention. Coverage has ranged from page one stories in major U.S. dailies to in-depth segments on network television. Giarratano, who came into death row as a semiliterate suicidal loner and loser, has transformed himself into a constitutional scholar who has written successful briefs on behalf of fellow prisoners. His articles have run in disparate forums, from the Los Angeles Times op-ed page to the current Yale Law Review.

This was my fourth visit with Giarratano in the past 22 months. I’m one of a large and growing number of people who have scrutinized the record of this case-pre-and post-conviction procedures, transcripts, appeals-and concluded that Giarratano is either innocent or deserves a new trial.

Evidence obtained in the past three years that raises doubts, according to Giarratano’s lawyer, includes the following: Bloody shoe prints found in the apartment did not match Giarratano’s boots, which had no blood on the soles; the stabbing and strangling were done by a right-handed person, while Giarratano is left-handed; hair found on the rape victim did not match Giarratano’s; the autopsy report was changed after Giarratano’s confession to corroborate the confession. Attempts to introduce this evidence in appeal have been rejected by state and federal courts due to procedural rules.

Giarratano’s conviction, after a three-hour trial in which he was represented by an inexperienced court-appointed lawyer, turned on his confessions. Five were given— each inconsistent with the others and each made while in a delusional state. A state psychiatrist has testified that the confessions were made up—”confabulated”—as the result of Giarratano’s psychotic mental state.

What’s known about the crime is that on February 4, 1979, Giarratano, blacked out from alcohol and drugs, awoke from a living-room sofa to find the two bodies, one bloodied from a slit throat, the other strangled. Assuming that he must have killed the two, Giarratano fled by bus to Florida. There, overcome with guilt and remorse, he turned himself in.

In the cooling room of the state prison, I asked Giarratano the question that most perplexes people who have yet to take sides on the case: If it’s so certain that you’re innocent or deserving of a new trial, why haven’t the courts, after 10 years of considering your well-crafted appeals, said so? He answered: “It isn’t that the courts weren’t convinced one way or the other, but they’re bound by the procedural rules they created. It’s a court rule that if the defense attorney didn’t make proper objections during the trial, then the error cannot be raised on appeal. The second procedural rule states that any new evidence must be raised within 21 days of the trial’s conclusion; otherwise the review is forever barred. Federal courts must defer to state procedural rules. Because of all this, no court has ever ruled on the merits of my case.”

Gerald Zerkin, Giarratano’s Richmond attorney, says that Virginia has the nation’s narrowest and most unresponsive appeal system: “In recent years, our state courts have reviewed about 50 cases in post-conviction appeals and have not overturned one death sentence. Nationally, the overturn rate is more than 40 percent. Instead of its being seen as someone’s life is at stake and therefore we need more due process, in Virginia it’s the opposite: because we need to kill them, we should give them less due process.”
Several thousand letters have come into the office of Virginia Governor L. Douglas Wilder, including two from me and with no courtesy of a reply for either. Wilder, once an opponent of capital punishment but now an advocate, has authority to grant a conditional pardon that would permit a new trial based on new evidence and doubts about Giarratano’s guilt. Nationally, 23 innocent people have been executed between 1900 and 1985.

At interview’s end, Giarratano said he was hopeful of winning his freedom. Why?, I asked. He told me of meeting Douglas Wilder a few years ago, when the then state senator, outspoken in his opposition to executions, toured death row to publicize his views. “Conditions at the prison were pretty bad,” Giarratano recalled, “and Wilder came to the row to see for himself. When he left, he turned to us and said, ‘Don’t give up hope.’”

Giarratano hasn’t. Much of the world now looks on to see if Wilder is concerned with procedures or justice.

from The Washington Post. February 16, 1991

This reading is from The Class of Nonviolence, prepared by Colman McCarthy of the Center for Teaching Peace, 4501 Van Ness Street, NW, Washington, D.C. 20016 202.537.1372.